Abstention In Constitutional Cases- The Scope of the Pullman Abst

University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOLUME 122 MAY 1974 NUMBER ABSTENTION IN CONSTITUTIONAL CASES: THE SCOPE OF THE PULLMAN ABSTENTION DOCTRINE MARTHA A FIELDt TABLE OF CONTENTS INTRODUCTION I THE BACKGROUND OF THE PULLMAN DOCTRINE II THE PULLMAN CASE III THE ENGLAND PROCEDURE PART ONE: THE CASES IN WHICH PULLMAN ABSTENTION IS PROPER I ALLOWING STATE- COURTS TO RULE ON FEDERAL 1074 1074 1077 1078 1080 CONSTITUTIONAL ISSUES-AN IMPROPER PURPOSE FOR ABSTENTION II 1080 ALLOWING STATE COURTS TO DECIDE STATE ISSUES -A PROPER PURPOSE IN SOME INSTANCES 1084 t Associate Professor of Law, University of Pennsylvania A.B 1965, Radcliffe College; J.D 1968, University of Chicago Law School Member, District of Columbia Bar I wish to express my appreciation to Ms Susie Millman for her extensive assistance with this article 1072 UNIVERSITY OF PENNSYLVANIA LAW REVIEW A B [Vol 122:1071 The Advantages of Abstainingfor State Court Decision of State Issues and Its Costs The Proper Application of Existing Requirements That State Law Be Unclear and Be Susceptible to an Interpretation That Will Avoid a FederalConstitutional Question The Importance of a Significant Lack of Clarity in the State Law Issue An Analysis of the Reasons for Abstaining for State Court Decision of Unclear State Issues a Avoiding Interference With a Legitimate State Program b Avoiding Unnecessary Decision of Federal ConstitutionalIssues The Operation of These Policies in "Authorization Cases" a The Importance of Identifying the Policy That Abstention Will Serve in the Particular Case b Cases in Which Abstention Serves to Avoid Disruptinga Legitimate State Program c Cases in Which Abstention Serves to Avoid Unnecessary Federal Constitutional Adjudication d Cases Involving Clear and Nonsensitive FederalConstitutionalQuestions The Justification for Requiring Federal Decision of the State Law Issue Prior to the Abstention Decision The Application of the Abstention Principles to "Construction Cases" a The Need to Decide the State Law Issue Priorto the FederalIssue b The Interaction of the Abstention Policies in Construction Cases c Abstention in Cases of Clear Federal Unconstitutionality to Allow the State to Save Its Program * d The State's Ability to Correct Some Erroneous Decisions Through Administrative A ction 1084 1090 1090 1093 1093 1096 1101 1102 1104 1105 1106 1108 1111 1112 1113 1117 1118 ABS4TENTION IN CONSTITUTIONAL CASES 1974] C D E F The Application of the Abstention Policies in Cases Apparently Involving Construction in Which Conduct Under Authority of the Ambiguous Provision Is Also at Issue Summary of Suggested Rules for Applying Current Requirements That State Law Be Unclear and That It Be Susceptible to an Interpretation That Would Avoid a Federal Constitutional Question a Authorization Cases b Construction Cases c Construction Cases in Which Conduct Under the Ambiguous Enactment Is Also at Issue A Countervailing Factor-The Relevance of a Public Interest in Swift Adjudication of the Federal ConstitutionalIssue Conclusion RegardingProposedApplication of Existing Factors Relating to Unclear State Law and the Nature of the Federal ConstitutionalIssue A Proposalto Abandon the Requirement That the Case Must Contain a Federal ConstitutionalIssue Possible Additional Pullman Requirements A Requirement That the Suit Be One to Enjoin State Action The State's Consent as a Precondition of A bstention a A Requirement That State Officials Consent to Abstaining in the ParticularCase b A Requirement of Adequate State Remedies PART TWO: THE RELATION OF PULLMAN ABSTENTION TO OTHER TYPES OF ABSTENT ION I II III "THIBODAUX ABSTENTION" ADMINISTRATIVE ABSTENTION THE DOMBROWSKI-YOUNGER LINE OF CASES 1121 1126 1126 1128 1129 1129 1134 1136 1138 1138 1143 1143 1144 1147 1148 1153 1163 1074 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 INTRODUCTION I THE BACKGROUND OF THE PULLMAN DOCTRINE The eleventh amendment to the United States Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State Though the amendment does not in terms so state, it has been established that states are similarly protected against suits by their own citizens.' Moreover the protection extends beyond suits against states as such to cover actions in which persons acting as state officials are named as defendants Thus it would appear that individual litigants may never sue a state without its consent In 1908, however, in Ex parte Young, the Supreme Court severely qualified this protection by holding that a suit against a state officer alleged to be acting unconstitutionally is not a suit against the state Its "reasoning" was that a state official cannot be acting on behalf of the state when he acts unconstitutionally The same rationale would seem to exempt the I Hans v Louisiana, 134 U.S (1890) Governor of Ga v Madrazo, 26 U.S (1 Pet.) 110, 122-23 (1828) (Marshall, C.J.) Chief Justice Marshall had earlier held that the eleventh amendment protects the state only when the state is the named defendant, Osborn v Bank of the United States, 22 U.S (9 Wheat.) 738, 846, 857 (1824), but his position in Madrazo, apparently altering that aspect of Osborn, has since been settled doctrine The amendment would be of little avail if it did not apply to suits against state officials The case law is less than clear, however, on when an individual acts as a state official and when he acts in his private capacity See, e.g., Georgia R.R v Redwine, 342 U.S 299 (1952); In re Ayers, 123 U.S 443 (1887) 209 U.S 123 (1908) " Although Young is the case that has come to symbolize the doctrine, there were earlier cases tending in the same direction See, e.g., Prout v Starr, 188 U.S 537 (1-903); Smyth v Ames, 169 U.S 466 (1898); Reagan v Farmers' Loan & Trust Co., 154 U.S 362 (1894) In Ex parte Young the Court said: [T]he use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional If the act which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in 1974] ABSTENTION IN CONSTITUTIONAL CASES states from the prohibitions of the fourteenth amendment and other constitutional provisions regulating only state action Nevertheless, the Court has held that acts of state officials can violate those constitutional provisions as acts of the state The tw6 doctrines in combination enabled individual litigants to question the constitutionality of state actions in federal court, even where the state had not consented to suit They thereby significantly facilitated enforcing state compliance with federal constitutional standardsA At the same time, the proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States 209 U.S at 159-160 Another difficulty with the rationale is how, given the usual principles for construing the statutory federal question jurisdiction, see Louisville & N.R.R v Mottley, 211 U.S 149 (1908), these cases are deemed to "arise under" the Constitution when the official character of the action is raised only as justification and the invalidity of the statutory authority only by reply to that justification Home Tel & Tel Co v Los Angeles, 227 U.S 278 (1913) The Court there said: [I]t may not be doubted that where a state officer under an assertion of power from the State is doing an act which could only be done upon the predicate that there was such power, the inquiry as to the repugnancy of the act to the Fourteenth Amendment cannot be avoided by insisting that there is a want of power That is to say, a state officer cannot on the one hand as a means of doing a wrong forbidden by the Amendment proceed upon the assumption of the possession of state power and at the same time for the purpose of avoiding the application of the Amendment, deny the power and thus accomplish the wrong To repeat, for the purpose of enforcing the rights guaranteed by the Amendment when it is alleged that a state officer in virtue of state power is doing an act which if permitted to be done prima faie would violate the Amendment, the subject must be tested by assuming that the officer possessed power if the act be one which there would not be opportunity to perform but for the possession of some state authority 227 U.S at 288-89 Home Tel & Tel thus goes beyond contradicting the Young rationale-which seemingly would exempt states from the fourteenth amendment even when the state instigates or directs the unconstitutional action and its courts expressly approve it-and deems even actions that the state apparently prohibits to be state action within the fourteenth amendment Some actions on the part of officials, however, are considered individual rather than state conduct See note supra See also United States v Raines, 362 U.S 17, 25-26 (1960); Mosher v City of Phoenix, 287 U.S 29 (1932) If one were not permitted to sue state officers for violating the Constitution, the most obvious way to raise constituti6nal issues would be in defense of a criminal prosecution For a discussion of that and other possible methods of enforcing the Constitution against the states, see H HART & H WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 936-37 (2d ed 1973) and C.A WRIGHT, FEDERAL COURTS, 185-86 (2d ed 1970) See also Louisiana v Jumel, 107 U.S 711, 750-52 (1883) 1076 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 doctrines made possible substantial federal court interference with state programs by making every program, whether it was longstanding or newly enacted and not yet launched, subject to constitutional attack in the federal courts and to issuance of an injunction against its execution or continuation Even if the federal system ultimately sustained the validity of the program, interlocutory orders delaying its enforcement could cause irreparable damage to state policy Congress rejected legislative proposals to overturn entirely the new federal jurisdiction.' But over a period of years it passed a number of bills designed to cut down on the -adverse effects on the execution of state policy that Ex parte Young had made possible The most significant of these bills took from the federal courts all power to enjoin state rate orders and tax collections so long as "a plain, speedy and efficient remedy" is available in the courts of the state;" and required a district court of three judges to pass upon attempts to enjoin state statutes or administrative orders on constitutional grounds, 12 with direct Supreme Court review of their decisions The courts joined with Congress in imposing limitations upon the situations and the manner in which injunctions against state officials should issue One of the most important court-imposed limitations has come to be known as "the Pullman doctrine" from the case in which it was first fully articulated.' The doctrine concerns the federal courts' abstention in certain constitutional cases from the exercise of jurisdiction that Young and ensuing congressional statutes would seem to allow to them (Harlan, J., dissenting) Professor Wright concludes that -in perspective the doctrine of Ex parte Young seems indispensable to the establishment of constitutional government and the rule of law." C.A WRIGHT, supra at 186 In an era when state economic regulation was often found vulnerable to due process attack, the new federal jurisdiction was especially disruptive is See, e.g., 45 CONG R c 7256 (1910) (remarks of Senator Overman); 42 CONG REc 4848-49 (1908); F FRANKFURTER & J LANDIS, THE BUSINESS OF THE SUPREME COURT 143 (1928) "Johnson Act, 28 U.S.C § 1342 (1970); Tax Injunction Act, 28 U.S.C § 1341 (1970) 12 The original three-judge court act applied only to state statutes and not administrative orders 36 Stat 557 (1910) It was codified as § 266 of the 1911 Judicial Code The provision has been modified in several respects over a period of years See H HART & H WECHSLER, supra note at 967-68 The current version is 28 U.S.C § 2281 (1970) 13Railroad Comm'n v Pullman Co., 312 U.S 496 (1941) Cases that might be deemed precursors to Pullman can be found in H HART & H WECHSLER, supra note at 988-89 1974] ABSTENTION IN CONSTITUTIONAL CASES II THE PULLMAN CASE Railroad Commission of Texas v Pullman Co 14 involved a challenge to an order of the Texas Railroad Commission that all sleeping cars operated by railroads in Texas must be in the charge of a Pullman conductor Prior to the Commission's order, trains with only one sleeping car had been in the charge of a porter instead of a conductor Porters were black, conductors white The order was attacked 15 on the grounds that it violated the commerce, due process and equal protection clauses' of the Federal Constitution and that it was invalid under Texas law A three-judge district court held that the Texas statute which gave the Commission power over railroads and which made it "the duty of the said Commission to correct abuses and prevent unjust discrimination in the rates, charges and tolls of such railroads and to prevent any and all other abuses in the conduct of their business ,u1 did not authorize the Commission to issue the order as the correction of an "abuse," and the court enjoined enforcement of the Commission's order on that ground.' On direct review the Supreme Court held, in an opinion by Justice Frankfurter, that the district court should have abstained from deciding the case Although Pullman was within the original federal jurisdiction as a federal question case, jurisdiction also extended to the ancillary state issue.' In fact, the Supreme Court had suggested that in such cases federal courts should decide the state questions first if, as in Pullman, doing so might avoid a federal constitutional decision 20 The difficulty in Pullman was that, according to Justice Frankfurter, Texas law was "far from clear ' '2 ' It is true that the language of the Texas statute did not permit a confident determination whether or not the 14 312 U.S 496 (1941) 15The complainants were the Pullman Company and the affected railroads The porters intervened as complainants and the conductors intervened in support of the order Id at 498 16The fourteenth amendment challenges were both that the order was unjust and arbitrary and that it discriminated against Blacks 312 U.S at 499 n.1 18 Pullman Co v Railroad Comm'n, 33 F Supp 675 (W.D Tex 1940) 19See Siler v Louisville & N.R.R., 213 U.S 175, 191 (1909) 20See e.g., Cincinnati v Vester, 281 U.S 439 (1930); Greene v Louisville & Interurban R.R., 244 U.S 499, 508, 519 (1917); Siler v Louisville & N.R.R., 213 U.S 175, 193 (1909) 21 312 U.S at 499 1078 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 Commission's order was within its purview.2 Justice Frankfurter said as well that Texas decisions interpreting the statutory language did not clarify the issue On that assumption, a federal court that follows the policy of deciding state issues first runs a high risk of deciding those questions erroneously If it erroneously holds the order authorized, it will needlessly reach the federal constitutional questions.2 If it erroneously holds that the order is unauthorized, it will avoid for the moment deciding the constitutional questions, but only at the risk of improvidently enjoining an ostensibly valid state program Moreover, if the state courts subsequently expose the error by deciding the state question differently, the federal decision will be subject to reopening 25 If it is reopened, the federal constitutional questions may then have to be litigated Therefore, although the Supreme Court in Pullman did not find the district court's "forecast of Texas law" unreasonable, it concluded that only the course of abstaining in favor of the state judicial system could "avoid [both] the waste of a tentative decision [and] the friction of a premature constitutional 26 adjudication III THE ENGLAND PROCEDURE The Pullman Court indicated its belief that abstention would not prejudice the complainants' federal constitutional claims,2 but it did not make explicit whether those claims 28 would ultimately be decided in state or in federal court 22 The statutory language provides little guidance concerning the limits of the Commission's power to correct "abuses." Justice Frankfurter also raised the possibility that the order might be authorized under the Commission's power to correct "discrimination." It seems plain on the face of the statute, however, that the power to prevent "unjust discrimination" is limited to railroads' "rates, charges and tolls"-although in quoting from the statute in the body of the opinion the Justice omitted the reference to "rates, charges, and tolls." 312 U.S at 498 & n.1, 499 23 In fact such decisions, which the district court had relied upon, were relatively unambiguous, indicating that to be correctible by the Commission an "abuse" must be defined as such by law Pullman Co v Railroad Commission, 33 F Supp 675, 676-77 (W.D Tex 1940) 24 If the court then held the order constitutional, the ultimate disposition of the controversy would also be erroneous 22See, e.g., Lee v Bickell, 292 U.S 415 (1934); Glenn v Field Packing Co., 290 U.S 177 (1933) 26 312 U.S at 500 27 Id at 501 28 There are suggestions in the opinion, however, that a return to the federal forum was contemplated Justice Frankfurter speaks of the state settling "the issue 19741 ABSTENTION IN CONSTITUTIONAL CASES 1079 For a period after the Pullman decision, it remained unsettled whether the parties remanded to a state court should submit their federal as well as their state claims for the determination of that tribunal or whether they could reserve their federal claims for initial determination by the federal district court in case the state law questions did not in fact dispose of the controversy 29 In 1964 in England v Louisiana State Board of Medical Examiners,3" the Supreme Court settled most questions about the procedure to be followed when Pullman abstention is ordered It held that a litigant remanded to state court under that doctrine cannot be compelled to submit his federal claims for state court disposition; abstention may not be used to deprive him of the benefits of an initial federal determination of the federal issues and of the facts on which disposition of those issues depends Although the litigant must inform state courts of the nature of his federal claims so that they may construe state law in light of them, he need not litigate the issues in state court 32 While prior to 1964 it was not clear whether the original federal forum was preserved for the litigants, and while that uncertainty may possibly have affected the disposition of some pre-1964 cases, the evaluation of the Pullman doctrine that follows, and the discussion of which cases require abstention, will proceed on the assumption that 33 the England procedure is and was the rule of state law." Id at 501 Moreover, he directs the district court to retain jurisdiction over2the controversy pending the state adjudication Id at 501-02 9See, e.g., Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 LAw & CONTEMP PROB 216, 229 (1948) The later case of Government Employees v Windsor, 353 U.S 364 (1957), which held that litigants remitted to state courts must present their federal constitutional contentions so that state courts can interpret their law in the light of the constitutional claims, contributed to an impression that once the federal court has abstained, the state court to which the issue is delegated has jurisdiction of the whole controversy 30 375 U.S 411 (1964) 31375 U.S at 416-17 Accordingly, the federal district court should retain jurisdiction rather than dismiss when it orders abstention See American Trial Lawyers Ass'n v New Jersey S Ct., 409 U.S 467 (1973) 32 A litigant may, however, submit his federal along with his state claims for decision in the state courts If he does that, he is- bound by the state court's decision and can have it overturned only by seeking review in the Supreme Court of the United States 375 U.S at 417-19 See NAACP v Button, 371 U.S 415, 427 (1963) 33 One cannot sensibly discuss the proper scope for an abstention doctrine without making an explicit assumption concerning the abstention procedure, for the scope of the doctrine should vary with the procedure contemplated Abstention for state court adjudication of federal as well as state claims, for example, might well be invoked in fewer or in different cases than abstention for state court determination of state issues alone Under the American Law Institute's proposal regard- 1080 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 PART ONE: THE CASES IN WHICH PULLMAN ABSTENTION IS PROPER I ALLOWING STATE COURTS TO RULE ON FEDERAL CONSTITUTIONAL ISSUES-AN IMPROPER PURPOSE FOR ABSTENTION An abstention policy could serve several different purposes in cases involving the federal constitutionality of state enactments; the purpose intended will define the range of cases appropriate for abstention One possible approach would allow state courts to rule on the validity of state enactments even when the only issues at stake were federal The Pullman doctrine rather clearly does not adopt this approach.3 Nonetheless, it is necessary to examine its validity in order to detering abstention, for example, a case in which abstention is ordered will not, in the normal course, return to federal court, but instead will be fully decided within the state system subject only to possible review in the United States Supreme Court The Institute recognizes that this fact makes abstention appropriate only when the district judge finds, inter alia, "that the parties' claims of federal right, if any, including [any] issues of fact material [thereto], can be adequately protected by review in the Supreme Court of the United States." AMERICAN LAW INSTITUTE, STUDY OF THE DivIsIoN OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS 289 (1969) [hereinafter cited as ALI STUDY] This limitation, according to the ALI commentary, will "ordinarily" bar abstention "[i]f there is a genuine issue of fact material to the federal contentions in the case." Id 290 The conception then of the ALI procedure is to allow courts to remove entirely from the original federal jurisdiction cases that, though falling within a category of cases for which Congress has deemed federal jurisdiction necessary, not on their facts show any need for federal jurisdiction That conception is sufficiently different from the Pullman-England one, which allows each forum to adjudicate its own legal issues, that the ALI approach could supplement the current concept as readily as it could replace it Another change in procedures which would affect the proper scope of abstention would be the removal of some of the burdens abstention presently imposes on parties wishing to invoke federal jurisdiction If, for example, a procedure were available for certification of a disputed state issue to the highest state court and if that procedure adequately met the needs for state court input in the particular case, then abstention might be more readily ordered than under the more cumbersome England procedure of requiring the plaintiff to initiate an action at the lowest state court level and to appeal the result through the state system before returning to the federal forum Cf Lehman Bros v Schein, 42 U.S.L.W 4603 (U.S Apr 29, 1974) 11 The Court has stated that "abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim." Zwickler v Koota, 389 U.S 241, 251 (1967) See also id at 247, (quoting F FRANKFURTER & J LANDIS, THE BUSINESS OF THE SUPREME COURT 65 (1928)); McNeese v Board of Educ 373 U.S 668, 672, 674 (1963) Cf England v Louisiana State Bd of Medical Examiners, 375 U.S 411, 415-16 (1964) Moreover, the England holding that parties may withhold federal issues from state tribunals when abstention is ordered clearly demonstrates that the purpose of abstention cannot be state decision of federal issues That will nonetheless be an effect of abstention when the remanded party chooses to present his federal claims in state court 1974] ABSTENTION IN CONSTITUTIONAL CASES with a state criminal prosecution, ' 278 what will be considered an attempt to criminal prosecution It is settled that, criminal proceeding is pending when the question remains interfere with a state at least when a state the federal plaintiff files suit,27 an attempt to interfere by declaratory relief will be treated as the equivalent of an attempt to enjoin But cases provide little guidance concerning which suits constitute attempts to interfere with criminal prosecutions That category is not limited to situations in which criminal prosecutions are pending, for none was pending in Dombrowski, and despite the exercise of federal jurisdiction in the case it is a "DombrowskiYounger" suit in the sense that the Court required special circumstances to support the exercise of federal jurisdiction 28 " Conceivably all cases in which a plaintiff phrased his aim in his pleadings as enjoining a state prosecution would be Dombrowski-Younger cases, whereas if he said he sought to enjoin 27'The Dombrowski-Younger category may not, however, be limited to cases threatening interference with criminal enforcenient proceedings The decided Supreme Court cases involve criminal proceedings, but it is an open issue, which has been adverted to by a number of Justices, whether civil enforcement proceedings should be included Chief Justice Burger and Justices White and Blackmun seem to have taken the position that no line should be drawn between civil and criminal proceedings Lynch v Household Finance Corp., 405 U.S 538, 561 (1972) (dissenting opinion) See also Mitchum v Foster, 407 U.S 225, 244 (1972) (concurring opinion) In his separate concurring statement in Younger v Harris, Justice Stewart, joined by Justice Harlan, noted that the Court did "not deal with the considerations that should govern a federal court when it is asked to intervene in state civil proceedings, where, for various reasons, the balance might be struck differently" than in cases involving state criminal prosecutions 401 U.S at 55 At the same time, however, Justice Stewart indicated that he found major differences between criminal and civil proceedings 401 U.S at 55 n.2 In Gibson v Berryhill, 411 U.S 564, 575 (1973), the opinion for the Court, authored by Justice White, stated that it was still an open question whether the Younger v Harris rules applied in state civil proceedings At another point in the opinion, however, it stated that only three "established principles" would "under appropriate circumstances, restrain a federal court from issuing injunctions" against state court proceedings: the requirement of exhaustion of administrative remedies, Pullman abstention, and "the basic principle of federalism that a federal court may not enjoin a pending state criminal proceeding in the absence of special circumstances " 411 U.S at 573-74 (emphasis added) See also Mitchum v Foster, 407 U.S 225, 230, 237 (1972); Allee v Medrano, 94 S Ct 2191, 2201 (1974); note 323 infra In Speight v Slaton, 356 F Supp 1101 (N.D Ga 1973), a three-judge district court declined under Younger to intervene in a pending state civil enforcement proceeding On appeal the Supreme Court vacated the decision on other grounds 94 S Ct 1098 (1974) See text accompanying notes 323-27 infra The Court has since noted probable jurisdiction in a case that should resolve the issue MTM, Inc v Baxley, 94 S Ct 1559 (1974) 79 See note 266 supra 280 One factor relevant to whether federal jurisdiction will be exercised in a case that does fall within the Dombrowski-Younger category is whether the proceeding sought to be enjoined is pending It once appeared that this factor governed as well whether 1174 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 operation of a statute, albeit a criminal one, Pullman analysis alone would apply Such a rule would be extremely nonfunctional; no purpose behind either the Dombrowski-Younger or the Pullman doctrines is fulfilled by allowing a plaintiff through his pleading so to affect the choice of forum And the cases show that the plaintiff's pleading is not determinative 28 Moreover the cases show the determinative question is not simply whether the statute the plaintiff attacks carries criminal penalties That line might be justified simply on the theory that the basis for the presumption in favor of state jurisdiction is a desire to allow states to control their own criminal processes the federal anti-injunction statute, 28 U.S.C § 2283 (1970), would apply to these cases since it covers only pending proceedings, see Dombrowski v Pfister, 380 U.S 479, 484 n.2 (1965); Ex parte Young, 209 U.S 123, 161-62 (1908), but now it is settled that civil rights actions are within the "expressly authorized" exception to the congressional prohibition, Mitchum v Foster, 407 U.S 225 (1972), so the anti-injunction statute would seem in any event ineffective in the suits in question But cf note 276 supra Since Dombrowski itself did not involve a pending state prosecution, it is clear that the line between pending and non-pending prosecutions does not demarcate the Dombrowski-Younger category But cf Perez v Ledesma, 401 U.S 52, 120-21 (1971) (Brennan, J., concurring in part and dissenting in part) That line may be relevant, however, in deciding how to dispose of cases within the category Douglas involved threatened and pending prosecutions, while Younger involved principally a pending one In Younger the Court held the irreparable harm requirement would usually not be satisfied in an attempt to secure federal intervention in state criminal proceedings absent a showing of bad faith and harassment (The Court said, 401 U.S at 53, there might be other unusual circumstances that could show irreparable harm, including perhaps that the challenged prosecution "is only one of a series of repeated prosecutions to which [the plaintiff] will be subjected," id at 49, but it did not detail them.) That rule for when the irreparable harm requirement is satisfied seems narrower than Dombrowski's rule The difference is explainable on the ground that Younger involved pending proceedings while Dombrowski did not; there is language in Younger that would support that explanation 401 U.S at 41 ("We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun."); id at 45, 49 (references to "pending" proceedings) See also Perez v Ledesma, 401 U.S 82, 103-30 (1971) (Brennan, J., concurring in part and dissenting in part) Other language, however, would indicate that Younger cuts back on Dombrowski for non-pending cases as well 401 U.S at 45-53 (reference to "threatened prosecutions" and use as examples of cases involving non-pending prosecutions) 281 In both Pullman and Dombrowski-Younger cases the complaint typically prays for an injunction and/or declaratory relief against enforcement of the challenged state enactment In Pullman and Harrison v NAACP, 360 U.S 167 (1959), for example, both of which were treated as Pullman and not Dombrowski-Younger cases, the plaintiffs sought respectively "to restrain the enforcement of a certain order made by the Commission ", Pullman Co v Railroad Commission, 33 F Supp 675, 676 (W.D Tex 1940); and "to secure a declaratory judgment and an injunction restraining and enjoining the defendants from enforcing or executing [the statute at issue]," NAACP v Patty, 159 F Supp 503, 506 (E.D Va 1958) See also 360 U.S at 169 The prayers for relief in Douglas and Dombrowski appear similar In Douglas the 1974] ABSTENTION IN CONSTITUTIONAL CASES and that the presumption must operate whenever a plaintiff seeks to enjoin the operation of a statute with criminal penalties Case holdings belie the explanation; not all cases in which plaintiffs attack a statute with criminal penalties are treated as Dombrowski-Younger cases; some are subjected only to Pullman 28 analysis A more functional line of demarcation for the DombrowskiYounger category would focus on whether a criminal proceeding brought under the statute challenged was either pending or imminent If it was neither, and there was nonetheless a case or controversy, Dombrowski-Younger treatment would not be proper The rationale would be that though defense of a criminal prosecution might be adequate to protect the plaintiff, if no such proceeding seemed imminent it would not seem likely that the plaintiff would soon have that forum available.28 This line too has difficulties The most obvious are the difficulties in deciding how imminent should be considered "imminent" and how imminence should be shown.2 Need plaintiffs sought "to enjoin the defendant city of Jeannette and its Mayor from en Douglas v City of forcing against them a certain ordinance of that city Jeannette, 130 F.2d 652, 653 (3d Cir 1942) In Dombrowski the plaintiff asked, inter alia, "that a permanent injunction issue '* * * restraining the defendants, their agents and attorneys from the enforcement, operation or execution of [the statutes in question] Dombrowski v Pfister, 227 F Supp 556, 558 (E.D La 1964) In Zwickler v Koota, 389 U.S 241 (1967), so far as appears from the reports, the prayer for relief did explicitly ask that the defendant be restrained from "prosecuting" the plaintiff 261 F Supp 985, 988 (E.D.N.Y 1966) It is not clear whether it is a Dombrowski-Younger or solely a Pullman case See note 292 infra But in any event the phrasing of the complaint is not a factor in that determination Nor can the two categories of cases be separated according' to the identity of the defendants sought to be enjoined Law enforcement and prosecuting officials have been' defendants in such Pullman cases as Harrison and Pullman itself, as well as in Dombrowski 282 For cases involving statutes bearing criminal penalties, yet subjected only to Pullman and not to Dombrowski-Younger analysis, see England v Louisiana State Bd of Medical Examiners, 375 U.S 411 (1964); Harrison v NAACP, 360 U.S 167 (1959); cf Lake Carriers' Ass'n v MacMullan, 406 U.S 498 (1972); Chicago v Atchison, Topeka & Santa Fe Ry., 357 U.S 77 (1958) It is noteworthy that the statute carrying criminal penalties in each instance could be characterized as part of a regulatory program rather than an ordinary criminal statute On the basis of current case law, that distinction, though it is not a very precise one, could be said to separate the Pullman and Dombrowski-Younger categories 283 Professors Bator, Mishkin, Shapiro and Wechsler in H HART & H WECHSLER, supra note at 1044, seem to assume that this is the line setting off the DombrowskiYounger category 284 Douglas v City of Jeannette, 319 U.S 157 (1943), indicated DombrowskiYounger analysis should be used when the plaintiffs are "threatened" with prosecution, at least when they have earlier actually been prosecuted for engaging in similar UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 state officials have threatened proceedings against the plaintiff prior to the institution of the federal suit, or is it sufficient if in their answer they express an intent to institute such proceedings promptly? The latter approach would allow the state, at the pleading stage, to control whether a case would get Dombrowski rather than Pullman treatment, provided the plaintiff had violated the statute he challenged prior to his federal suit That result might not be dysfunctional, however, if when a plaintiff challenges a state criminal enactment the only reason for not presuming in favor of state fora when no proceedings against him are pending or imminent is that he should not have to forego the federal forum without an affirmative show2 ing that the state will provide an alternative In some situations the suggested categorization may be the equivalent of a rule that any case in which the plaintiff attacks a statute carrying criminal penalties should be analyzed in the Dombrowski-Younger manner, for a plaintiff will often be unable to satisfy "case or controversy" requirements unless state enforcement proceedings are either pending or imminent If the plaintiff has engaged in the conduct the state makes criminal, and no prosecution is even imminent, a challenge to the criminal statute is not likely to satisfy those requirements 288 unless the criminal conduct is conduct he wishes to continue to engage in If he does wish to continue, however, he may well be deemed in need of a present adjudication of the validity of the state statute -a need that could satisfy justiciability requirements and that would not appear satisfied by an ability to defend a prosecution in the absence of the imminence of any such prosecution Similarly when the plaintiff's attack on the validity of a statute that he has not yet violated is justiciable, 88 he needs a forum in which to test the conduct Cf note 292 & text accompanying notes 319-22 infra AFL v Watson, 327 U.S 582, 588 (1946), applied Dombrowski-Younger analysis when law enforcement agencies had been directed immediately to institute prosecutions against the plaintiffs and were in the course of preparing those prosecutions 285 If that were the test of imminence, the only way a plaintiff could assure a federal forum for a constitutional challenge to a state criminal statute would be to test that statute before violating it, and that method would be available only if he could satisfy justiciability requirements at that stage 288 Cf Younger v Harris, 401 U.S 37, 41-42 (1971) 287 Compare Zwickler v Koota, 389 U.S 241, 252-55 (1967), and Steffel v Thompson, 94 S Ct 1209, 1215-16 (1974), with Golden v Zwickler, 394 U.S 103 (1969), and O'Shea v Littleton, 94 S Ct 669, 675-77 (1974) See also note 259 supra 28 See Epperson v Arkansas, 393 U.S 97 (1968); Gardner v Toilet Goods 1974] ABSTENTION IN CONSTITUTIONAL CASES statute without having first to engage in criminal conduct In the latter two situations, in which justiciable controversies can exist despite the absence of pending or imminent state proceedings, the "pending or imminent" line does produce a different result than a test focusing on whether the challenge is to a criminal enactment, and it allows those cases to be analyzed only in accordance with the Pullman doctrine without regard to the Dombrowski-Younger shift of presumption Decided cases are not altogether consistent with a "pending or imminent state criminal proceedings" limitation on the Dombrowski-Younger category That line can explain the treatment of many cases Baggett v Bullitt,2 89 for example, was treated solely as a Pullman case although it involved an attack on a criminal statute, because the plaintiffs had not violated the statute they challenged 290 AFL v Watson 29 was treated as a Dombrowski-Younger case as well as a Pullman one There the plaintiffs were in violation of the challenged statute and their prosecutions were, according to the complaint, "in process of being prepared '2 92 Lake Carriers' v MacMulAss'n, 387 U.S 167 (1967); Adler v Board of Educ., 342 U.S 485 (1952); Euclid v Ambler Realty Co., 272 U.S 365 (1926); Pierce v Society of Sisters, 268 U.S 510 (1925); cf Lake Carriers' Ass'n v MacMullan, 406 U.S 498, 504-08 (1972) But see Toilet Goods Ass'n v Gardner, 387 U.S 158 (1967); Poe v Ullman, 367 U.S 497 (1961); International Longshoremen's Union v Boyd, 347 U.S 222 (1954); United Public Workers v Mitchell, 330 U.S 75, 86-91 (1947) 289 377 U.S 360 (1964) 290 Wisconsin v Constantineau, see text accompanying notes 102-06 supra, escapes Dombrowski-Younger treatment because the plaintiff had not been subjected to a criminal sanction and was not threatened with any criminal proceedings Insofar as the posting of her name is considered the equivalent of imposition of a criminal sanction, it had already taken place 291 327 U.S 582 (1946) 292 327 U.S at 588 Zwickler v Koota, 389 U.S 241, 254 (1967), casts doubt on this analysis but does not squarely contradict it The plaintiff Zwickler had been convicted of violating the statute he complained of when he distributed anonymous political handbills in the past His conviction had been overttirned on other grounds He then sought declaratory and injunctive relief against future prosecutions for violating the same statute He seemingly had not again violated the statute but expressed a desire to so and claimed he was prevented from doing so by a fear of prosecution 389 U.S at 252-53 In its treatment of the case, the Court did not make clear whether it would view it as a Dombrowski-Younger case or not The court below had so treated it and had held the plaintiff had not satisfied the requirement of irreparable harm The Supreme Court avoided deciding whether Zwickler was actually a Dombrowski-Younger case by holding that even if that conclusion were correct with respect to the plaintiff's request for injunctive relief, the same analysis did not apply to declaratory relief See note 266 supra Under the analysis suggested in text, Zwickler should not be treated as a Dombrowski- 1178 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 lan293 is not a Dombrowski-Younger case because though the plaintiffs were in violation of the water pollution act they attacked and though the Michigan authorities had enforced the provisions of the act regarding pleasure craft, 294 the Michigan authorities had not enforced the provisions pertaining to industrial boats like the plaintiffs', nor had they threatened to 295 prosecute violations Supreme Court opinions, however, rarely indicate any line of demarcation for the Dombrowski-Younger category or address in particular cases whether Dombrowski-Younger or Pullman treatment is proper Moreover, they often not disclose facts relevant to the proper treatment- of the case-such as whether a criminal proceeding is imminent or indeed whether the plaintiffs have violated the statute they challenge -but instead talk simply of one doctrine in relation to a particular case without disclosing why it is the relevant one Assuming that "pending or imminent criminal proceedings" is indeed the line demarcating the Dombrowski-Younger category, then Pullman itself is a case in which the Court's failure to discuss such issues creates doubt whether the case was properly handled Neither the Supreme Court opinion nor the district court opinion is informative on the point, but it seems likely that in Pullman the complaining railroads were in violation of the Commission's order, since that order sought to alter a preexisting practice Nor the opinions state whether enforcement proceedings had been threatened, 296 though the district Younger case since the plaintiff had not engaged in the conduct he would be prosecuted for and accordingly no prosecution was imminent See text accompanying notes 319-22 infra Douglas v City of Jeannette is like Zwickler in every respect except that there was more than an individual plaintiff; there was a class, and despite previous prosecution its members had engaged in further violations of the statute they challenged and had been threatened with further prosecution 293 406 U.S 498 (1972) 294 336 F Supp 248, 250 (E.D Mich 1971) 295 "Michigan authorities seek the cooperation of the industry in the implementation of its program and have not instigated, nor does it appear, threatened criminal prosecutions." Id at 252 296 Pullman did involve a penalty, subjecting a violator to a possible fine of up to $5000 TEx REV Civ STAT ANN art 6476 (1926) Multiple violations were multiply cognizable, Gulf, Col & S.F Ry v Texas, 246 U.S 58, 60 & 62 (1918) The Pullman enforcement proceeding appears to have been denominated civil, however, with civil rules of evidence prevailing That the case was thus not purely "criminal" might explain why it was not treated as a Dombrowski-Younger case See note 282 supra; cf Gibson v Berryhill, 411 U.S 564, 576 (1973) (suggesting that the dividing line between Dombrowski-Younger and Pullman cases may be whether state law characterizes the proceedings as "quasi-criminal") 1974] ABSTENTION IN CONSTITUTIONAL CASES 1179 court opinion does disclose that a temporary restraining order against the order's enforcement was issued during the proceedings.297 The vice of Pullman is a failure to address these issues; it may indeed have been correctly treated There are two cases, however, that were treated solely as Pullman cases in which it affirmatively appears that the facts would justify DombrowskiYounger treatment if pending or impending prosecutions is the test of that category The district court opinion in Chicago v Atchison, Topeka & Santa Fe Ry 98 suggests that the plaintiffs there had violated the statute of which they complained Moreover, the city had threatened criminal prosecution 299 As in Pullman, however, a temporary restraining order against enforcement had been issued by the district court after commencement of the proceeding Similarly, the district court opinion in NAACP v Patty3°0 shows that the plaintiffs there were in violation of the statutes they challenged and also that prosecution had been threatened The district court therefore treated the case as a Dombrowski-Younger one It did find the irreparable harm requirement satisfied, though in doing so it applied a test seemingly less stringent than that the Court would have followed.30 The Supreme Court, however, did not mention the possibility of Dombrowski-Younger treatment for the case 30 and applied only Pullman analysis 30 The Supreme Court has recently decided several cases that appear to contain the opposite error, applying Dombrowski297 298 Pullman Co v Railroad Comm'n, 33 F Supp 675, 676 (W.D Tex 1940) 136 F Supp 476 (N.D Il 1956), rev'd, 240 F.2d 930 (7th Cir 1957), aff'd, 357 U.S 77 (1958) 299 357 U.S at 81 300 159 F Supp 503 (E.D Va 1958), vacated and remanded, 360 U.S 167 (1959) 301 Cf Douglas v City of Jeannette, 319 U.S 157, 163-65 (1943); Spielman Motor Sales Co v Dodge, 295 U.S 89, 95-96 (1935); & Beal v Missouri Pac R.R., 312 U.S 45, 50-51 (1941) Earlier the Court had followed a more lenient test closer to that of the district court See Packard v Banton, 264 U.S 140, 143 (1924); cf Ex parte Young, 209 U.S 123, 161-63 (1908) 302 It did refer to the district court's finding that threatened enforcement produced irreparable harm and said the finding was supported by the evidence 360 U.S at 178 It did not, however, appear to be thereby addressing the Dombrowski-Younger issue but instead seemed to state concern that the parties be protected during the Pullman abstention it ordered That concern was satisfied by pledges state officials made during the course of the litigation not to proceed against the plaintiffs for conduct engaged in during the period they were testing the statutes Id at 179 302England v Louisiana State Bd of Medical Examiners, 375 U.S 411 (1964), may also properly be a Dombrowski-Younger case, though only Pullman abstention was discussed or ordered The Supreme Court did not rule on the validity of the abstention 1180 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 Younger analysis in situations calling only for Pullman treatment While those cases not fit within the categorization this Article suggests for Dombrowski-Younger cases, they not suggest any other workable classification either Indeed, they not recognize Dombrowski-Younger cases as a separate category at all; their common mistake is a failure to note any difference of approach between "Dombrowski-Younger cases" and other cases within the federal jurisdiction, most noticeably the difference in applying the irreparable harm requirement Consequently the opinions proceed on the assumption that the only distinction to be made is between one group of cases in which it is proper to exercise federal jurisdiction and one group in which it is not In Steffel v Thompson 30 the petitioner sought declaratory relief 30 against a threatened application to him of Georgia's criminal trespass statute While distributing handbills protesting American involvement in Vietnam on an exterior sidewalk of a shopping center, the petitioner had on two occasions left under threats by police that if he continued handbilling he would be arrested On the second occasion, petitioner's companion had refused to leave and had been arrested and charged with criminal trespass In his complaint the petitioner alleged he desired to continue handbilling but that threats that if he did he would be arrested and prosecuted deterred him from doing so The district court and the court of appeals denied relief The Supreme Court reversed, Justice Brennan writing for a unanimous Court The Court found, first, that the petitioner's allegations did establish the existence of an actual controversy at the time he filed his action His fears of prosecution were not "imaginary or speculative, ' 30 as both police testimony and his companwhich was ordered by the district court It appears that the plaintiffs had violated the criminal statute and that threats of enforcement had been made 30494 S Ct 1209 (1974) 305In the district court he sought injunctive relief as well It was denied along with the declaratory relief Becker v Thompson, 334 F Supp 1386 (N.D Ga 1971) On appeal to the court of appeals the petitioner abandoned the request for injunctive relief Becker v Thompson, 459 F.2d 919, 921 (5th Cir 1972) The fact that injunctive relief was originally requested means that a three-judge court should have heard the case in the first instance, but the abandonment of the request for injunctive relief made the court of appeals' exercise of jurisdiction proper 94 S Ct at 1214-15 n.7 306 94 S.Ct at 1215 (quoting Younger v Harris, 401 U.S 37, 42 (1971)) ABSTENTION IN CONSTITUTIONAL CASES 1974] ion's arrest confirmed, and it was not necessary that he "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights ' 30 The only question was whether the controversy continued until the present, given the lessening of American involvement in Vietnam, 30 a question the Court directed the district court to resolve on remand The Court then proceeded to ask whether declaratory relief should have been precluded because the petitioner's attack was levelled at a state criminal statute The lower courts had found relief inappropriate on grounds that Younger v Harris "made it clear beyond peradventure that irreparable injury must be measured by bad faith harassment, ' 30 that bad faith could not be found here, and that though Younger's holding was limited in terms to situations in which a state prosecution was pending, its reasoning applied equally to threatened state proceedings Likewise, the courts reasoned, Samuels v Mackell -holding that in situations where Younger made injunctive relief unavailable because of an absence of irreparable harm, declaratory relief should be equally unavailable-should apply equally to threatened criminal proceedings The Supreme Court's reversal was on the theory that "[n]either Younger nor Samuels decided the question whether federal intervention might be permissible in the absence of a pending state prosecution, ' 11 and that those decisions should not apply when criminal proceedings were not pending because in that situation federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state courts' ability to enforce constitutional principles In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the 30 Id at 1216 308 Cf Golden v Zwickler, 394 U.S 103 (1969) 309 310 Becker v Thompson, 459 F.2d 919, 922 (5th Cir 1972) 401 U.S 66 (1971) 31"94 S Ct at 1217 UNIVERSITY OF PENNSYLVANIA 1182 LAW REVIEW [Vol 122:1071 hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal 312 proceeding Therefore, the Court concluded, when no state criminal proceeding is pending at the time federal intervention is sought, at least declaratory relief is not precluded, for it does not require the irreparable injury traditionally prerequisite to injunctive relief.3 13 The Court left open the question whether 14 injunctive relief would be precluded on the facts of this case, since the petitioner had abandoned an earlier request for 15 that remedy While the Court's result is clearly proper, its reasoning is problematic A plain implication is that central to the result is a difference between the equitable requirement of irreparable injury and the requirements for declaratory relief It cannot be simply a difference between the requirements for equitable and declaratory relief that explains which cases a federal court will hear, however, for in suits involving pending state prosecutions, requests for declaratory and injunctive relief are equally barred 31 More fundamentally, Pullman and other cases subjected solely to Pullman analysis involved injunctive relief and yet were deemed to have satisfied the equitable requirement of irreparable harm without a showing that state criminal processes could not adequately adjudicate the controversy If, as the Court said, it recognized as an open question whether injunctive relief might be proper on the facts of Steffel, prdsumably without a showing of bad faith on the part of law enforcement officials, that is because it is not solely a difference between declaratory and injunctive requirements that explains the exercise of federal jurisdiction in Steffel An injunction might be permissible in the circumstances of that case on either of two theories: First, the less stringent test of irreparable injury, not requiring a showing of inadequacy in the state forum but instead presuming in favor of the fed31 Id 3,' See id at 1218-22 31 Id 315 at 1217 See also Allee v Medrano, 94 S Ct 2191, 2203 n.15 (1974) See note 305 supra 316 Samuels v Mackell, 401 U.S 66 (1971) 1974) ABSTENTION IN CONSTITUTIONAL CASES eral forum, might be applicable and the case not be within "the Dombrowski-Younger category" at all Alternatively, special circumstances might be required to justify the exercise of federal jurisdiction in the case without the test of special circumstances 17 being as stringent as when state proceedings are pending For example, the bad faith requirement usually prerequisite to the exercise of federal jurisdiction when a state prosecution is pending 18 might not be deemed essential if the prosecution were not pending This alternative would mean that Steffel, though not within a Younger category of cases (those involving pending criminal proceedings) was within the Dombrowski one (imminent state proceedings, still requiring showing of special circumstances for exercise of federal jurisdiction) and not in a category, like cases properly subjected only to Pullman analysis, where the presumption is in favor of federal jurisdiction On the facts of Steffel the first of these alternatives should be adopted and the case should not be subjected to DombrowskiYounger analysis at all 19 For the petitioner in Steffel was seeking to enjoin a statute that would be applied to him only in the event that he engaged again in handbilling; the threats to prosecute were not for past conduct but for conduct the petitioner had yet to engage in In that situation, to defer in favor of state criminal proceedings would require persons to subject themselves to criminal liability as a condition of attacking the constitutionality of the state criminal statute, a plainly undesirable result if, in the absence of criminal liability, there is nonetheless an extant case or controversy.32 Since no deference should be paid state criminal proceedings in a situation where the conduct to be charged has not yet occurred, a constitutional attack on the criminal statute brought at that time should proceed in federal court, unless Pullman requirements for abstention are satisfied The Court's analysis in Steffel does not, however, proceed along such lines In addition to whether declaratory or injunctive relief is sought, a factor discussed above, the Court implies that the differentiating factor between cases in which federal jurisdiction is exercised and those in which it is not is whether See note 280 supra Id 319 See also note 292 supra 32 See note 287 supra & accompanying text 317 318 1184 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 state criminal proceedings are pending or merely threatened at the time the federal suit is commenced While that distinction may be operative in some cases,3 ' it does not explain the difference in treatment between cases like Dombrowski and Pullman The Court has failed to differentiate between two kinds of threatened state proceedings: those threatened for conduct that has already occurred and those threatened for conduct yet to be engaged in If in Steffel the threat was to prosecute the petitioner for handbilling he had already done and, though state proceedings had not commenced when the federal suit was filed, state officials were in the course of preparing to prosecute, the case would resemble Dombrowski; under that holding more deference to state criminal proceedings would 22 seem appropriate than in the case as it arose Another case 323 containing errors similar to Steffel is Speight 321 See note 280 supra It has not been clear whether the special circumstances required to justify the exercise of federal jurisdiction in that instance would be the same as in a Younger (pending state prosecution) situation or not See notes 266 & 280 supra The Steffel holding purports to answer that question, saying at least as respects declaratory relief, a different and more lenient standard applies when the federal plaintiff wins the race to the courthouse No doubt Steffel will be taken so to settle the question See Allee v Medrano, 94 S Ct 2191, 2201 2203 (1974) Query whether the Court would have so held, however, if it had been presented with a case properly within the Dombrowski-Younger category-if, for example, Steffel had been threatened with prosecution for acts already engaged in Since the issue is the standard of special circumstances in that type of case, and Steffel is not that type of case, it should not be deemed dispositive of the issue despite the fact that the Court apparently thought it was involved there 323 A third 1973 Term case contains errors similar to Steffel In Allee v Medrano, 94 S Ct 2191 (1974), the plaintiffs, farmworkers, sought to enjoin as unconstitutional the enforcement of several Texas statutes, TEXAS PEN CODE ANN art 474 (1948) (breach of the peace) (since repealed); id art 482 (1948) (abusive language) (since repealed); id art 439 (1948) (unlawful assembly) (since repealed); TEX REV Civ STAT ANN arts 5154(d) & 5154(f) (1971) ("picketing" & secondary picketing), and sought also to enjoin certain Texas law enforcement officials from interfering with their constitutional rights They prevailed in the district court, and the Supreme Court affirmed, Justice Douglas writing for the five-man majority Justice Douglas first explained that a "case or controversy" was present, 94 S Ct at 2197-98, then took up the subject of the decree enjoining state officials After "not[ing] that this portion of the decree creates no interference with prosecutions pending in the state courts, so that the special considerations relevant to cases like Younger v Harris not apply here," id at 2199-2200, Justice Douglas said, "Nonetheless there remains the necessity of showing irreparable injury, 'the traditional prerequisite to obtaining an injunction' in any case." Id at 2200 (citing Younger v Harris, 401 U.S 37, 46 (1971) He went on to say that irreparable injury was apparent from the "persistent pattern of police misconduct" that the case involved 94 S.Ct at 2200 From the language quoted thus far, it is apparent that Allee v Medrano, like Steffel, assumes that for purposes of the exercise of federal jurisdiction there are 322 1973] ABSTENTION IN CONSTITUTIONAL CASES 1185 v Slaton 24 There the three-judge district court had declined to exercise its jurisdiction because of a pending state civil enforcement proceeding The Supreme Court avoided reaching the question whether Younger applied to civil as well as criminal enforcement proceedings, 32 for subsequent to the district court's decision, the Georgia Supreme Court had declared unconstitutional the state statute under which the enforcement proceedings had been brought The Supreme Court reasoned that two categories of cases-those involving pending state criminal prosecutions and others-without regard to any distinction between cases like Dombrowski involving imminent state prosecutions and cases properly subject only to Pullman analysis where state prosecutions are neither imminent nor pending The Court's failure to make the latter distinction is apparent in its comment that irreparable injury is invariably requisite to injunctive relief It is unclear whether Justice Douglas is applying that requirement in the Pullman or the Dombrowski sense when he says the showing of persistent police misconduct satisfies it It should be sufficient for the plaintiffs in Medrano to satisfy the less stringent test of irreparable harm applied in Pullman, since Medrano's injunction against Texas officials, which "[o]n its face [did] not more than require the police to abide by constitutional requirements," id at 2199, did not involve pending or threatened prosecutions at all The Court's citation to Dombrowski in making its irreparable harm argument, id at 2200, however, may indicate it viewed the requirement it was imposing as equivalent to the one in that case In the final part of his opinion, Justice Douglas addresses the propriety of the injunction against the Texas statutes Since there was some confusion in the record concerning whether there were pending prosecutions, Douglas remanded for a finding on this question, saying Younger and Samuels apply only when pending state prosecutions are present (citing Steffel) A confusing factor in Justice Douglas' discussion of the issue is his reference to whether "there were pending prosecutions at the time of the District Court decision," id at 2201, or whether there are pending prosecutions at the time of the remand, id at 2202, whereas earlier cases dealing with pending prosecutions clearly have been concerned, for Dombrowski-Younger purposes, with their pendency at the time the federal suit was filed, e.g., Steffel v Thompson, 94 S Ct 1209, 1217 (1974); Dombrowski v Pfister, 380 U.S 479, 484 n.2 (1965) Another indication of a departure from settled practice in the Medrano opinion is contained in Douglas' statement, "because we cannot determine with certainty whether there are pending prosecutions, or even whether the District Court intended to enjoin them if there were, the proper disposition is to remand the case to the District Court for further findings." 94 S Ct at 2202 (emphasis added) The implication that the result may differ according to whether the decree speaks in terms of enjoining a criminal prosecution or, instead, enjoining the criminal statute under which a prosecution pending against the federal plaintiff is brought is inconsistent with prior case law See note 281 supra & accompanying text; Roe v Wade, 410 U.S 113, 126 (1973) No such distinction according to the wording of an injunction should be accepted, since once a state criminal statute is declared unconstitutional and its enforcement enjoined, any criminal prosecution proceeding under it is effectively interfered with A final point of interest in Allee v Medrano is that while two of the statutes sought to be enjoined were civil statutes, the Court's opinion proceeds exactly as if all the challenged enactments were criminal Cf notes 256 & 278 supra 324 94 S Ct 1098 (1974) (unanimous per curiam decided after oral argument) 325 See note 278 supra UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol 122:1071 appellants could obtain full relief in the state court proceeding merely by moving to dismiss the state action, in accord with state procedural rules, in light of [the Georgia Supreme Court's recent decision] If that is the case, appellants could not now make any showing of irreparable injury by reason of the state court proceeding, and such a showing is of course required before the federal court could grant the equitable relief, apart from any special considerations involved in Younger v Harris 326 The difficulty with this reasoning is that its correctness depends upon whether civil enforcement proceedings are within the Dombrowski-Younger category at all-the question the Court purported not to decide For if the case is wholly without the Dombrowski-Younger category, it is erroneous to apply as a prerequisite to injunctive relief an irreparable harm requirement that looks to the adequacy of state proceedings.3 2" Despite Steffel v Thompson and Speight v Slaton, there is a difference in treatment between cases like Dombrowski and those properly subjected only to Pullman analysis, though distinctions may also be drawn within the Dombrowski-Younger category between suits involving imminent and pending prosecutions Whether a case is placed in the Dombrowski-Younger category or the Pullman category may well determinatively affect the exercise of state or federal jurisdiction It is therefore both surprising and disturbing that Supreme Court opinions often seem oblivious to the fact that any two such categories exist; consequently, they neither address the demarcation of these categories nor reveal any clear pattern of where the line is drawn If, as seems likely despite Steffel v Thompson, it is pending and imminent state criminal proceedings in which the Court will presume in favor of the state forum, the Court should explicitly recognize its shift of presumption from other cases within federal jurisdiction and should attempt to explain why the shift is allowable in the face of congressional jurisdictional statutes In any event, enunciation of an explicit line 94 S Ct at 1099 The Court's result might be permissible anyway under the discretionary rule that when an ongoing state proceeding involves an issue presented to the federal court, the federal tribunal may in its discretion await the state outcome without regard to usual abstention principles See note 256 supra 326 327 1974] ABSTENTION IN CONSTITUTIONAL CASES 1187 would provide the parties and the lower courts with more guidance than does the current amalgam of holdings, thus avoiding much of the wastefulness that currently occurs in determining whether the federal or the state forum should proceed with a controversy 328 Little can be said for retaining a category of cases of such uncertain scope and rationalea criticism applicable to the Thibodaux and administrative categories of abstention, as well as to this Dombrowski-Younger one 328 Perhaps also, depending upon what definition of "imminence" prevails, an explicit line drawn at imminent and pending state proceedings would often enable a state's attorney general to take advantage of the Dombrowski-Younger presumption by claiming an intent promptly to institute state criminal proceedings ... separately the operation of the abstention policies in each category " a The Importance of Identifying the Policy That Abstention Will Serve in the ParticularCase In cases in which the state issue is the. .. on the basis of this state's interest in the welfare of the injured plaintiff." I RESTATEMENT (SECOND) OF CONFLICT OF LAws § at 15 (1971) 127 The ABSTENTION IN CONSTITUTIONAL 1974] CASES of each... dispose of them in a manner that will avoid the constitutional infirmity; if abstention had been ordered in Constantineau, the very clarity of the federal constitutional issue would increase the